Obama picks BSA's antipiracy enforcer for high-level post

For his vice president, Barack Obama chose Joe Biden, a senator with a long history of aiding the Recording Industry Association of America. Then Obama picked the RIAA's favorite lawyer, Tom Perrelli, for a top Justice Department post.

Now, as one of his first official actions as president, Obama has selected the Business Software Alliance's top antipiracy enforcer and general counsel, Neil MacBride, for a senior Justice Department post. Among other duties, MacBride has been responsible for the BSA's program that rewarded people for phoning in tips about suspected software piracy.

All of these choices are well-qualified for their jobs, of course, and there's little reason to believe that Obama's copyright-litigator-turned-DOJer will have to leap any real Senate hurdles. (MacBride was appointed as associate deputy attorney general, a position does not require Senate confirmation, and previously worked on copyright and other issues as chief counsel to then-Sen. Biden.)

Still, the elevation of RIAA and BSA lawyers must feel like a poke in the eye to the copyleft and progressive crowd, who spent over a year showering Obama with praise. Public Knowledge called Obama's election an "important" victory, while Free Press lauded it as "a sea change in leadership that allows us to go from playing defense to offense." Stanford professor Larry Lessig--probably the best known "free culture" proponent--went so far as to plead for all of his friends to "do something this time" by voting for Obama over his Republican rival.

"Neil MacBride will serve the country well in his new position at the Justice Department," Robert Holleyman, BSA's president, said in a statement on Thursday.

BSA has opposed changes to the Digital Millennium Copyright Act's anti-circumvention section, once saying that legislation to allow backup copies of DVDs or video games would provide a "safe harbor for pirates who could easily claim that the 'intent' of their actions were legal." Early in the campaign, Obama told CNET News that he would support such a law, but hedged it by saying his support was "in concept" only. (He also claimed at the time to oppose retroactive immunity for telcos that illegally opened their networks to the National Security Agency, and we know how that turned out.)

Obama has fulfilled some of his campaign promises with surprising rapidity. On Wednesday, he ordered government agencies to be more open and Internet-friendly. On Thursday, he announced that the Guantanamo Bay prison would be closed within a year.

But copyright policy is far from Guantanamo, either in symbolic import or in partisan divisiveness. It's no coincidence that the most-loathed copyright bill in recent memory was written by a Democrat, or that a Hollywood Democrat pushed through yet another expansion of copyright law last year.

Nor is it a coincidence that the president of the RIAA gives money only to Democratic causes and politicians, or that Bill Clinton signed the Digital Millennium Copyright Act into law by saying he was "pleased" to sign a measure preventing "piracy in the digital age." (Trivia for Democrats: Clinton used the same type of signing statement that Bush became famous for, saying "I will construe" the legislation in a way that enhanced the power of the executive branch.)

Obama's most important copyright pick likely will be the so-called White House IP czar, created by the new Pro-IP Act. Speculation has included lobbyist Hal Ponder of the American Federation of Musicians; Michele Ballantyne of the RIAA (who has ties to Obama transition chief John Podesta); or Alec French of NBC Universal.

It's likely that the incoming IP czar--the full title is Intellectual Property Enforcement Coordinator and it requires Senate confirmation--will be influential in intra-administration copyright debates. But it would be foolhardy to deny the influence of the world's largest law firm, also known as the Justice Department, which has tossed around its considerable bulk in recent policy spats.

Some examples: A Justice Department official said in 2002 that the agency could begin to prosecute peer-to-peer pirates, and it still has the power to do so today. The department intervened in the RIAA's civil lawsuit against Jammie Thomas on the side of the record labels. It published an extensive report in 2004 calling for more powers and a law permitting lawsuits against companies that sell products that "induce" copyright infringement. In 2007, it proposed sweeping new legislation to outlaw "attempted" but unsuccessful copyright infringement.

This is where Obama is sending the RIAA (Tom Perrelli) and BSA (Neil MacBride) lawyers.

Two days into an administration is far too soon to evaluate its policies, of course, especially when important vacancies exist. But it may be possible that when Candidate Obama offered the usefully vague promise that he would "reform our copyright and patent systems," he had in mind something rather different than what many of his most enthusiastic Internet supporters did.